IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1306
Filed: 5 July 2017
Wake County, No. 14 CRS 207484
STATE OF NORTH CAROLINA
v.
MICHAEL AYODEJI FALANA, Defendant.
Appeal by Michael Ayodeji Falana from judgment entered 14 January 2016 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of
Appeals 17 May 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General M. Denise
Stanford, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
Katz, for the Defendant.
MURPHY, Judge.
Michael Ayodeji Falana (“Defendant”) appeals from the judgment below in
which a jury found him guilty of felony conversion. Defendant argues that the trial
court erred by denying his Motion to Dismiss because: (1) the State failed to establish
an essential element of felony conversion; and (2) the State’s evidence at trial fatally
varied from the indictment. Defendant argues further that the trial court’s jury
instructions were in error because: (1) the trial judge instructed the jury on felony
conversion based on the evidence presented at trial, which fatally varied from the
STATE V. FALANA
Opinion of the Court
indictment; (2) the trial court answered a question from the jury in violation of
N.C.G.S. § 15A-1234(c) (2015); and (3) the trial court’s supplemental instruction in
response to a question from the jury was legally erroneous and resulted in a coerced
verdict. We agree with Defendant that the trial court erred by denying Defendant’s
Motion to Dismiss, and vacate the judgment.
Background
In 2011, Defendant opened a business, Micdina Motors, that buys cars at live
and online auctions. To carry out his business, Defendant subscribed to various
online auction sites, including Copart. Copart is a marketing company that liquidates
total loss vehicles through online auctions. Only members that have provided proof
of licensing and paid associated fees can access and participate in Copart’s auctions.
Around 2012, Defendant permitted Mr. Olamide Olamosu (“Olamosu”) to use
his auction accounts for Olamosu to conduct his own business in exchange for a
portion of Olamosu’s sales. Defendant also permitted Olamosu to register as a
licensed sales representative with Micdina Motors at the North Carolina Department
of Motor Vehicles. Although Olamosu’s transactions went through Defendant’s
online accounts and he had access to one of Micdina Motors’ email accounts,
Defendant testified that Olamosu generally did not discuss his customers with
Defendant in detail.
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STATE V. FALANA
Opinion of the Court
In May or June 2013, Olamosu assisted Mr. Ezuma Igwe (“Igwe”) in the
acquisition of a 2012 Honda Pilot (“Pilot”), which he found using Defendant’s account
on the Copart auction site. The purchase price was $15,200. When Olamosu and
Igwe picked up the Pilot, it did not run. In addition, Igwe was unable to get title to
the car as it was subject to a lien. Falsely identifying himself as Defendant, Olamosu
arranged a refund with Copart for Igwe. Defendant disputed whether he knew the
details of this purchase and subsequent need for a refund.
In November 2013, Defendant and Olamosu began to have financial disputes
over various transactions, which led Defendant to believe Olamosu owed him over
$10,000. Olamosu told Defendant that he would pay Defendant what he owed before
he left the country in January 2014.
In January 2014, Olamosu coordinated the refund with Copart, which was to
be sent to Olamosu’s home address. Defendant testified that Olamosu told him about
the check at this time, suggesting Defendant call Copart to ensure it sent the check.
On 10 January 2014, Defendant called Copart, and requested that Copart send the
check to his address instead. When the check arrived, Defendant deposited it in his
personal bank account. Defendant denied knowing the check was Igwe’s refund. He
claimed he never met Igwe, and believed the check would constitute money Defendant
owed him.
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STATE V. FALANA
Opinion of the Court
The State charged Defendant with felony conversion in violation of N.C.G.S.
§ 14-168.1 (2015). The indictment read in pertinent part:
that on or about January 23, 2014, in Wake County the
defendant named above unlawfully, willfully, and
feloniously did being entrusted with property, 2012 Honda
Pilot, owned by Ezuma Igwe, as a person with power of
attorney to sell or transfer the property, fraudulently
convert the proceeds of the property to the defendant’s own
use. The value of the property was in excess of $400[.]
(Emphasis added). At the conclusion of the State’s evidence, Defendant moved to
dismiss the charge, arguing that (1) there was insufficient evidence that Igwe owned
the Pilot; and (2) there was a fatal variance between the indictment and the evidence
presented at trial because there was insufficient evidence that Defendant converted
the Pilot. The trial court denied the motion. At the close of all evidence, Defendant
renewed the Motion to Dismiss, which the trial court again denied. Defendant was
convicted of felony conversion. After Defendant paid restitution to Igwe in full, the
trial court sentenced Defendant to a minimum 6 months, maximum 17 months
imprisonment, which it suspended, placing Defendant on 24 months supervised
probation. On 14 January 2016, Defendant entered oral notice of appeal.
Analysis
Defendant argues inter alia that the Motion to Dismiss should have been
granted because the State failed to establish an essential element of felony conversion
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STATE V. FALANA
Opinion of the Court
– ownership – and there was a fatal variance between the indictment and the
evidence presented at trial as to ownership. We agree.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“[T]he question for the Court is whether there is substantial evidence (1) of each
essential element of the offense charged, or of a lesser offense included therein, and
(2) of defendant’s being the perpetrator of such offense.” State v. Marley, 227 N.C.
App. 613, 614-15, 742 S.E.2d 634, 636 (2013) (citation omitted). Substantial evidence
exists if there is “relevant evidence that [a] reasonable mind might accept as adequate
to support a conclusion.” Id. at 614, 742 S.E.2d at 635 (citation omitted). A variance
between the indictment and the evidence presented at trial “occurs where the
allegations in an indictment, although they may be sufficiently specific on their face,
do not conform to the evidence actually established at trial.” State v. Norman, 149
N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). Where such a variance is material,
it warrants a reversal because of the concern that the defendant be “able to prepare
his defense against the crime with which he is charged, and to protect the defendant
from another prosecution for the same incident.” Id. at 594, 562 S.E.2d at 457
(citations omitted).
Defendant was charged with felony conversion pursuant to N.C.G.S. § 14-
168.1, which states:
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STATE V. FALANA
Opinion of the Court
Every person entrusted with any property as bailee, lessee,
tenant or lodger, or with any power of attorney for the sale
or transfer thereof, who fraudulently converts the same, or
the proceeds thereof, to his own use, or secretes it with a
fraudulent intent to convert it to his own use, shall be
guilty of a Class 3 misdemeanor.
If, however, the value of the property converted or secreted,
or the proceeds thereof, is in excess of four hundred dollars
($400.00), every person so converting or secreting it is
guilty of a Class H felony. In all cases of doubt the jury
shall, in the verdict, fix the value of the property converted
or secreted.
Felony conversion “occurs when a defendant offends the ownership rights of
another.” State v. Woody, 132 N.C. App. 788, 789, 513 S.E.2d 801, 803 (1999).
[A]n essential component of the crime is the intent to
convert or the act of conversion, which by definition
requires proof that someone other than a defendant owned
the relevant property. Because the State is required to
prove ownership, a proper indictment must identify as
victim a legal entity capable of owning property. An
indictment that insufficiently alleges the identity of the
victim is fatally defective and cannot support conviction of
either a misdemeanor or a felony.
Id. at 789-90, 513 S.E.2d at 803. “Where an indictment charges the defendant with
a crime against someone other than the actual victim, such a variance is fatal.” Id.
at 790, 513 S.E.2d at 803 (quoting State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d
131, 144 (1994)). Thus, a proper indictment for felony conversion must identify the
proper victim and the State must prove ownership. Id. at 789-90, 513 S.E.2d at 803.
The State failed to provide substantial evidence of each essential element of
felony conversion because it failed to establish that Igwe owned the Pilot. Despite
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STATE V. FALANA
Opinion of the Court
alleging that Defendant was entrusted with the Pilot “owned by Ezuma Igwe,” the
evidence demonstrated that Igwe was never the owner of the Pilot. North Carolina
law defines the owner of a motor vehicle as “a person holding the legal title to a
vehicle.” N.C.G.S. § 20-4.01(26) (2015). Igwe never received title to the Pilot; thus,
he did not meet the definition of owner of a motor vehicle in North Carolina as to the
Pilot. Moreover, a lien encumbered the Pilot that Igwe could not remove. The lack
of title statutorily precluded Igwe from qualifying as an owner, and the lien further
demonstrated his lack of ownership of the Pilot. Therefore, the State did not produce
sufficient evidence that Igwe owned the Pilot. Since ownership is essential to
establishing the elements of felony conversion, Woody, 132 N.C. App. at 289-90, 513
S.E.2d at 803, there was not substantial evidence of each essential element of the
offense charged. The trial court erred when it failed to grant Defendant’s Motion to
Dismiss.
Conclusion
For the reason stated above, the trial court should have granted Defendant’s
Motion to Dismiss. We need not reach the additional fatal variance issue argued by
Defendant or the issues related to the jury instructions.
VACATED.
Judges HUNTER, JR. and DAVIS concur.
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